Many times during the course of a divorce case a client will relay to me the fact that their child has expressed a desire to live with one parent over the other, and the parent wants to know how we can go about ensuring the children’s wishes are followed. Unfortunately, as is the case with many areas of the law, the answer to this question is not as straightforward as many of my clients would hope.
Florida Statute 61.13(3)(i) states that in custody and visitation matters, the Court should consider the wishes and desires of the child. However it is completely up to each individual Judge as to how much weight to give a child’s preference. Even more frustrating for parents is that just because your child may express a strong desire to present their preference to the Court, the Court does not have to follow their preference. Moreover, even the decision to determine whether a child can speak directly to the Court is subject to the individual discretion of each Judge.
While Florida law clearly states that the best interest of the child shall be the primary consideration in determining issues related to time-sharing, the Courts are guided by a host of other factors as well, including the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
So how do you go about actually presenting this situation to the Judge so that the Court can determine if it will listen to the preferences of a child? Well, the first step would be to file a Motion to Permit Child Testimony, which will put the Court and the other party on notice that the children may have a preference on the issue of time-sharing. This decision, however, to involve your minor child in family law litigation should never be taken lightly. Requesting that your child be permitted to testify in Court can lead to additional, more intrusive evaluations and interviews for yourself and your children, in the event the other party objects to involving the children in the litigation.
Another hurdle that you may need to overcome in your attempt to have your child testify in a family law matter is the Judge themselves. With some Judges, it is simply a matter of judicial philosophy that says children should never be a part of a family law case under any circumstances, while other Judges may have a more liberal, case-by-case approach in determining whether or not to hear from a child. In making this determination it is likely that the Court would consider the following factors: (1) if the child is intellectually and emotionally mature enough to have a valid opinion; (2) if the child knows the difference between truth and lies; (3) if the child has an opinion on the issue before the court; (4) if the child wants to voice his or her opinion; and (5) if the child is not being threatened or bribed by someone to give a false opinion.
If you have questions about child testimony or how to ensure your children’s best interests are followed, it is important to consult with an experienced family law attorney. Contact Attorney Russell J. Frank at [email protected] to learn more about the parameters on child testimony in family law matters.